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Title: A1258690642tYKfk


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Access to essential medicines as a Human Right
ICIUM-2, 30 March 2004
Hans V. Hogerzeil, MD, PhD, FRCP Edin Essential
Drugs and Medicines Policy (EDM) World Health
Organization
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Human Rights

• Human rights concern the relation the between
  state and the individual
• They lead to state obligations and individual
  entitlements
• All human rights are interdependent and
  interrelated. Health is a fundamental human
  right, indispensable for the exercise of other
  human rights
• Freedom from discrimination underpins all human
  rights
• Promotion of human rights is a principle purpose
  of the UN

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First expression of the right to healthThe WHO
Constitution (1946)

• The States parties to this Constitution declare,
  in conformity with the Charter of the United
  Nations, that the following principles are basic
  to the happiness, harmonious relations and
  security of all peoples.

Health is a state of complete physical, mental
and social well-being and not merely the absence
of disease or infirmity. The enjoyment of the
highest attainable standard of health is one of
the fundamental rights of every human being
without distinction of race, religion, political
belief, economic or social condition (...)
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Universal Declaration of Human Rights (1948)
Art.25.1 Everyone has the right to a standard
of living adequate for the health of himself and
of his family, including food, clothing, housing
and medical care and necessary social services
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The right to health is also recognizedin
numerous other instruments

• 1961 European Social Charter
• 1966 International Covenant on Economics, Social
  and Cultural Rights (most detailed Article 12.1
  and 12.2)
• 1978 Declaration of Alma Ata
• 1981 African Charter on Human and Peoples Rights
• 1988 Additional Protocol to the American
  Convention on HRs in the Area of Economic, Social
  and Cultural Rights
• 1989 Convention on the Rights of the Child

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International Covenant on Economics, Social and
Cultural Rights (ratified by 147 countries)

• Article 12 recognizes the
• right of everyone to the enjoyment of the
  highest attainable standard of physical and
  mental health
• Article 12.2 illustrates a number of
• steps to be taken by States parties to achieve
• a. maternal, child and reproductive health
• b. healthy natural and workplace environments
• c. prevention, treatment and control of disease
• d. health facilities, goods and services

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Committee on Economic, Social and Cultural
RightsGeneral Comment nr.14 (May 2000)

• Art.12.2.c
• Right to prevention, treatment and control of
  diseases includes creation of a system of urgent
  medical care in case of accidents, epidemics and
  disaster relief and humanitarian assistance
• Art 12.2.d
• Right to health facilities, goods and services
  includes appropriate treatment of prevalent
  diseases, preferably at community level
• and the provision of essential drugs as defined
  by the WHO Action Programme on Essential Drugs

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Committee on Economic, Social and Cultural
RightsGeneral Comment nr.14 (May 2000)State
Party obligations

• 
  Progressive
  realization
• But some obligations are immediate
• Exercise right without discrimination (art.2.2)
• Take steps toward the full realization of article
  12
• these steps must be deliberate, concrete and
  targeted towards full realization of the right to
  health (dont go back!)

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Committee on Economic, Social and Cultural
RightsGeneral Comment nr.14 (May 2000)Violations

• Adoption of retrogressive measures, repeal,
  suspension
• Failure to take all steps to ensure the right to
  health e.g.
• failure to adopt or implement a national health
  policy designed to ensure the right to health for
  anyone
• insufficient expenditure or misallocation of
  public resources
• failure to monitor realization of the right to
  health in the country
• failure to take measures to reduce inequitable
  distribution of health facilities, goods and
  services

Important distinguish inability from
unwillingness of the State
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Access to essential drugs as a Human RightWhere
are we now?

• Health is a human right (Univ.Decl.Hum.Rights).
• The right to health care includes the right to
  emergency care and health facilities, goods and
  services (Covenant)
• The right to facilities, good and services
  includes the provision of essential drugs as
  defined by WHO (GCom.14)
• State parties are under immediate obligation to
  guarantee that the right to health care is
  exercised without discrimination, and that
  concrete steps are taken towards full
  realization, with emphasis on vulnerable and
  marginal groups

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So what?
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Access to essential medicines as a Human
RightWhat does it mean in practice?

• 1. Rights-based approach incorporated in
  medicines programmes
• 2. Definition of minimum needs of essential
  medicines
• 3. Verification of state obligations under HR
  treaties as part of 5-yearly country reports to
  HR Commission (WHO access indicators)
• 4. Support individuals and NGOs in claiming their
  rights
• List of State Parties, for public pressure
• Promote List of Essential Medicines to define
  State obligations
• Promote simple monitoring tools for access and
  pricing
• Publish successful litigation cases

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National recognition of a Right to Health
Source Eleanor D. Kinney The International
Human Right to Health What does this mean for
our nation and world? Indiana Law Review, 200
34 1465. Quoted in 25 Questions and answers on
health and human rights, WHO, 2002
Source
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Ruling for Accesswith Melanie Samson, Jaume
Vidal Casanova (WHO/EDM interns)

• Objective
• To identify and analyze court cases from
  developing countries, in which individuals/groups
  have sued Governmental institutions, claiming
  access to essential medicines on the basis of
  human right treaties signed by the State, and
  have won their case.
• Results
• Twenty cases 7 supported by NGOs 13 refer to
  HIV/AIDS others to leukemia, renal transplant
  medicines, multiple sclerosis, diabetes

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Successful litigation on access to essential
medicines, as part of the fulfilment of the Right
to Health
Country cases over time
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Main findings in 20 successful cases

• Most rulings concerned life-saving medicines (17)
• International treaties create State obligations
  towards the individual (8 cases in 5 countries)
• Individual cases can create collective rights (7)
• Right to Health not restricted by limits in
  social security (6)
• Government policies can be challenged in court
  (2)
• State has special obligations towards poor and
  disadvantaged (2)

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Success factors in 20 cases

• Constitutional provisions International treaties
  enjoy constitutional rank (7/7), Right to Health
  mentioned (6/7)
• Right to Health linked to Right to Life (13/20)
• Legal, financial and moral support by NGOs (8/20)
• Acquired rights, non-interruption of treatment
  when social security rights are time-limited or
  exhausted (4/20)
• Non-discrimination leading to right to equitable
  availability of medical care (3/20) and State
  obligations to the poor (2/20)

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Recommendations

• Govts Ensure constitutional provisions on the
  Right to Health, Right to Life, constitutional
  rank for international treaties
• UN Use constitutional provisions as indicator
  for Government commitment when reporting on Right
  to Health
• WHO Make detailed analysis of constitutions
  disseminate information on successful litigation
  empower NGOs
• NGOs Campaign for constitutional provisions
  plan and support targeted litigation cases

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Recommendations

• and YOU ?

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• Work towards a better world
• and
• Demand good governance

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World Health Organisation Department of Essential
Drugs and Medicines Policy 1211 Geneva,
Switzerland Fax 41-22-7914167 Web Site
http//www.who.medicines/ Documentation Centre
darec_at_who.int

WHO